City of Larned v. Jordan

[128] The opinion of the court was delivered by PIoktoN, O. J. : It is admitted in this case that the money deposited in the Pawnee County Bank was a trust fund, and never belonged to the bank. It is further admitted that the assets of the bank came into the hands of M. A. W. Jordan, as assignee, impressed with the trust. '(Myers v. Board of Education, 51 Kas. 87.) It seems also to be admitted upon the part of the defendant below that it would have been possible for the plaintiff, at the time the assignee took charge of the assets of the Pawnee County Bank, to have maintained this action to subject all of such assets to the payment of the trust fund ; but it is contended that the city had another remedy, which it elected to pursue, and having made a choice between two inconsistent remedies, it is estopped to claim the other. The contention is that, after the city received notice of the time and place of allowing demands against the estate of F. J. Mathias, the defaulting treasurer, due proof of the account of the city against Mathias was made for the city of Larned; that this was allowed to it as a general creditor; that subsequently the city, as a creditor of the bank, received a dividend of $464.51; that it still retains this money, and cannot now claim the deposit made by F. J. Mathias as a trust fund. If it were true that the city, through its. proper of-‘ ficials, had presented to the assignee of the Pawnee County Bank a demand on account of the deposit as a general creditor, and had obtained an allowance of any part thereof, then, having made an election with a knowledge of the important facts affecting its rights, it could not abandon its first election and adopt the opposite remedy. (Plow Co. v. Rodgers, 53 Kas. 743.) [129] But in this case neither the city of Larned nor its city treasurer, nor any of its officers, presented any demand to the assignee of the bank for allowance. The chy demanded the money due from F. J. Mathias of G. Krouch and other bondsmen, and G. Krouch presented to the assignee his demand, alleging “that the bank is justly indebted to this affiant, as bondsman, for the amount of the deposit upon the following claims, to wit: Upon the deposit account, as above stated, in the sum of $4,645.18, which this affiant claims as bondsman of F. J. Mathias, city treasurer, aforesaid.” And further alleging “This certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer —all of which is due and payable to himself alone.” Krouch did not attempt, in the presentation of his demand, to act for the city or to present any claim or demand in behalf of the city No allowance was made to the city of Larned by the assignee. The assignee allowed the demand of G. Krouch only. . 'Whether this allowance was properly made or not by the assignee we need not now inquire. The city of Larned could not obtain any dividend from the assignee upon the allowance made to Krouch, and when the dividend was paid by the assignee the check was not made to the city, or to its city treasurer, or to any officer of the city. The assignee, in accordance with the proof of the demand of Krouch, issued to him a check for the 10 per cent, dividend, amounting to $464.51. This was turned over to the city treasurer, and credited upon the account. If Krouch, as a bondsman of F. J. Mathias, had paid $100 or any other sum to the city treasurer to satisfy a part of the indebtedness of F. J. Mathias, it would have been the duty of the city treasurer to have accepted the same and properly [130] credited it. This is all that was done according to the record as presented. . There is nothing in the record showing that the city of Larned considered itself a creditor of the Pawnee County Bank, or-ever presented any demand or ratified the proof of any demand made by any other person to the assignee of the bank as a creditor. Therefore it does not appear from the record that the city of Larned has attempted to pursue two inconsistent remedies. In fact the city has declined to be recognized as a general creditor of the bank. By accepting the check issued to G. Krouch as bondsman, and applying this upon its account with F. J. Mathias, the city did not adopt the demand of Krouch as an allowance to the city. (McLeod v. Evans, 66 Wis. 401; City of Leavenworth v. Rankin, 2 Kas. 357.) The assignee of the bank did not recognize the city as a creditor in allowing the demand of Krouch, and did not recognize the city as a creditor, or entitled to the allowance or to any part of the dividend thereon, when it made its first dividend payable to G. Krouch, bondsman. Unless Krouch pays voluntarily to the city the dividends that he may receive upon his demand, the city, even if it had not enjoined the payment of further dividends, could not obtain any part thereof. Upon the authority of Myers v. Board of Education, 51 Kas. 87, the judgment will be reversed, and the cause remanded for a new trial. All the Justices concurring.